Citation Nr: 0008864
Decision Date: 03/31/00 Archive Date: 04/04/00
DOCKET NO. 93-22 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence sufficient to warrant
reopening the claim of entitlement to service connection for
the cause of the veteran's death has been received.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
J.M. Daley, Associate Counsel
INTRODUCTION
The veteran had service in the United States Air Force from
January 1952 to May 1973. He died August 10, 1987; the
appellant is his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from the Houston, Texas, Department of Veterans
Affairs (VA) Regional Office (RO). All actions requested in
the Board's January 1997 remand have been accomplished, to
the extent possible; thus, the Board will proceed to
adjudicate the claim. See Stegall v. West, 11 Vet. App. 268
(1998).
FINDINGS OF FACT
1. In a decision dated in December 1990, the Board denied
service connection for the cause of the veteran's death
claimed as due to radon exposure; the appellant did not
appeal.
2. The evidence submitted subsequent to the Board's December
1990 decision is so significant that it must be considered in
order to fairly decide the merits of the claim.
3. There is plausible evidence of a nexus between the cause
of the veteran's death and radon exposure in service.
4. The preponderance of the competent and probative evidence
of record shows that the veteran's fatal lung cancer was
related to tobacco use, not to radon exposure.
5. There is no competent evidence of record showing that the
veteran developed nicotine dependence as a result of service,
or that in-service cigarette smoking caused the lung cancer
that resulted in his death.
CONCLUSIONS OF LAW
1. New and material evidence has been received to warrant
reopening the claim of entitlement to service connection for
the cause of the veteran's death. 38 U.S.C.A. § 5108 (West
1991); 38 C.F.R. § 3.156(a) (1999).
2. The claim of entitlement to service connection for the
cause of the veteran's death, claimed as due to radon
exposure, is well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
3. The claim of entitlement to service connection for the
cause of the veteran's death, based on tobacco use, is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
4. No service-connected disability caused or contributed
materially and substantially to cause the veteran's death.
38 U.S.C.A. §§ 1310, 5107(b) (West 1991); 38 C.F.R. § 3.312
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
A service medical record dated in December 1967 reflects
treatment for bronchopneumonia. The report of medical
examination at service retirement, dated in April 1973, shows
that the veteran's lungs and chest were clinically evaluated
as normal. In the "Notes and Significant or Interval
History" section was noted an occasional pain in the chest,
attributed to nervous tension and "gas" and presently
asymptomatic. Also noted were chronic colds and a chronic
cough, referred to as a mild sinus condition and aggravated
by climate changes, without complications or sequelae.
During his lifetime the veteran was service-connected for a
medial collateral ligament strain of the left knee, evaluated
as 10 percent disabling; removal of a growth on the lower
lip, evaluated as noncompensable; and residuals of a left
foot fracture, evaluated as noncompensable. He had no other
adjudicated service-connected disabilities.
The veteran died August 10, 1987, of respiratory arrest
secondary to lung cancer. No contributory or underlying
causes of death are identified on the death certificate and
no autopsy was performed. The appellant applied for VA death
benefits in September 1987, which the RO denied in January
1988; she appealed.
In a statement received in January 1989, the appellant argued
that the veteran's lung cancer was "directly connected to
and aggravated by" his service, specifically exposure to
radon gas. She cited treatises relevant to radon exposure
impact and the rareness of lung cancer before the age of 40.
She cited residences during service where she and her husband
were exposed to amounts, which, "according to the EPA is 10
times the average outdoor level or the equivalent of 200
chest x-rays per year." She cited the EPA and other experts
as linking radon exposure to lung cancer deaths. She stated
that the station in Turkey had been closed and not tested but
that another station in Turkey measured greater than the 4
picocuries limit cited by the EPA. She cited Dr. J.
Fabrikent as stating that "spending 12 hours a day in a
house with excess Radon boosts a person's cancer risk by 50
percent."
In November 1989 the RO received articles and excerpted
medical texts pertinent to the incidence and mortality of
lung cancer in radon exposed individuals.
Also in November 1989, the RO received records of treatment
of the veteran from Wilford Hall. At the time of evaluation
in December 1982 for a duodenal ulcer, the veteran was noted
to smoke 1 1/2 packs of cigarettes per day. In October 1986,
the veteran was admitted for evaluation of a possible
malignancy. At that time the veteran was noted to have a
"6-7 (sic) pack/year history of smoking." The final
diagnosis was poorly differentiated large cell carcinoma of
the lung, with extrapulmonary metastasis. A narrative
summary sheet, containing similar physical and laboratory
findings notes a past history significant for a "60-70 pack
year history of smoking." A handwritten clinical record
shows a 70 pack per year smoking history and that the veteran
claimed a few years' of asbestos exposure in the Air Force.
A medical history report includes a two pack-per-day smoking
history for 35 years. Available records document treatment,
to include with radiation.
Wilford Hall records include a physician's statement dated in
January 1987; the diagnosis was large cell cancer of the lung
with brain metastasis from which the veteran was not expected
to recover "in any significant capacity." In January 1987,
the veteran was treated on an emergent basis for dehydration.
A "Medical Disability Retirement" statement dated in
February 1987 notes the veteran's 70-80 pack per year smoking
history.
In a narrative summary of the veteran's terminal
hospitalization, it was noted that the veteran was in good
health until October 1986, at which time he was evaluated for
a nonproductive cough and weight loss. The summary notes
discovery of large cell carcinoma, with radiation treatment.
His medical history included note of smoking three packs of
cigarettes per day with a 70-pack per year history. The
veteran was admitted August 6, 1987 for signs of progression,
with shortness of breath and hypoxia. He died August 10,
1987. Associated clinical records include note of a 120
pack-per-year smoking history and a three pack-per-day habit
for 40 years.
In a decision dated in December 1990, the Board denied
service connection for the cause of the veteran's death.
In January 1991, the appellant submitted a statement
pertinent to radon gas and its dangers, particularly lung
cancer, citing various articles, and also provided a
residence history pertinent to herself and the veteran. In a
letter to the Vice President she argued that the veteran had
been subject to moderate-to-high doses of radon gas at the
various bases he lived at while in the military and that
radon gas exposure was a contributory factor in his death.
Radon assessment database information for specified
structures at Wright-Patterson Air Force Base shows that the
veteran lived and worked in the approximate area of the test
monitors but that there was no monitor for his actual home;
the neighboring home showed a radon level of 3.8 picocuries.
In November 1992, a newspaper article pertinent to the levels
of radon gas in base housing was associated with the claims
file. That article sets out that radon is the second leading
cause of lung cancer next to smoking and that "[s]mokers
have a 10-times greater risk of developing lung cancer from
radon exposure than non-smokers." The article also sets out
that "[l]ong-term exposures at low levels can be as
potentially harmful as short-term exposures at high
levels...." The article further identified facilities with
radon levels in excess of the four picocurie Environmental
Protection Agency standard, to include Wright Patterson in
Ohio.
In November 1992 the appellant submitted a letter dated in
September 1992, from Major D. Jordan, USAF, who advised the
appellant of the results of radon assessment database
research for specified structures at Wright-Patterson Air
Force Base. There was no data for one of the veteran's
residences, but a neighboring residence was stated to have
had a level of 3.8 picocuries, stated to be just above the 95
percent statistical cut off for mitigation. The maximum
result in that community area was 12 picocuries. Another of
the veteran's residences was stated to have a result of
picocuries, and the hospital where he worked had a maximum
reading of .4 picocuries. That letter was originally
received in
In January 1995, the appellant testified at a hearing at the
RO, and indicated that such was accepted in lieu of a hearing
before the Board. The representative argued that the veteran
died from a combination of radon gas exposure and smoking.
The appellant reported that she had known her husband in high
school and that he smoked at that time maybe a pack a day or
less. She reported that over the years his smoking
increased. She stated that the veteran quit smoking for a
six-month period in 1961/1962, but started smoking again.
The appellant mentioned the different bases the appellant
worked at. The appellant then discussed the etiology of the
veteran's fatal cancer, and noted that Dr. Petty stated radon
could have contributed to such cancer, but that another
doctor would not give an opinion. The representative cited
information as to smoking increasing the body's
susceptibility to other conditions. The appellant argued
that a house in the cul-de-sac where they lived had high
radon levels per the Air Force. The representative also
referred to DVB Circular 21-91-12, (July 1, 1991) as it
relates to environmental hazards, see Veterans Benefits
Administration (VBA) Circular 21-91-12 (Rev.)
August 21, 1992, ENVIRONMENTAL AGENT REVIEW, and the general
counsel's opinion relating to cigarette smoking, see
VAOPGCPREC 19-97 (May 13, 1997).
In August 1996, the RO received duplicate copies of medical
records from the veteran's employer, showing treatment at the
Wilford Hall Medical Center for lung carcinoma with
metastasis to the brain.
In March 1997, the RO received copies of three letters, as
follows. In a letter dated in June 1988, A. Petty, M.D.,
advised the appellant that "I do not think I can make a very
strong case that his tumor was related to Radon gas exposure.
The type of cancer that he had, an adenocarcinoma of the
lung, can be found in people who do not smoke. However, it
is very significantly increased in people who have [a] strong
smoking history. Since [the veteran] had a history of heavy
cigarette use throughout most of his life, I would have to
state that that is the most likely source for his lung
cancer. I cannot deny that exposure to Radon gas may have
had some role in the development of this problem. However,
all the information currently available would suggest that
the cigarette use was a much more likely causative factor."
Dr. Petty concluded by stating, "I believe that there is not
enough sufficient information to make a strong case for
arguing that your husband's lung cancer was caused by
exposure to Radon gas."
In March 1997 the appellant submitted a letter dated in
October 1991, from W. Ellett, Ph.D., of the National Research
Council's Board on Radiation Effects Research, who advised
the appellant that it was "true that radon exposures can
cause an increase in lung cancer mortality particularly among
persons who smoke. However it is not possible to date when a
particular cancer was initiated."
In March 1997, the RO received three newspaper articles
pertinent to deaths caused by radon exposure. One article
cites a study by the National Research Council that "the
danger of indoor exposure to radioactive radon gas is much
higher than previously believed and is especially hazardous
for smokers" and that "...among every 1 million people
exposed to a relatively low dose of radon in a lifetime,
there will be an average of 350 lung cancer deaths above
those that will normally occur." The other articles include
similar information. One cites homes with the highest radon
levels in "eastern Pennsylvania; Fargo, N.D.; the Spokane
River Valley of eastern Washington and northern Idaho; and
portions of Florida, Maryland, Colorado, Montana, Idaho,
Maine and Tennessee."
The appellant contends that the veteran was exposed to radon
gas at Kelly Air Force Base in San Antonio, Texas; Bolling
Air Force Base in Washington, D.C.; Wright Patterson Air
Force Base in Ohio; Lackland Air Force Base in Texas;
Goodfellow Air Force Base in Texas; Tuslog Det. 46,
Karamursel Air Station, in Turkey; Sheppard Air Force Base in
Texas; Clovis Air Force Base in New Mexico; and McGuire Air
Force Base in New Jersey. She submitted Air Force records
pertinent to the veteran's service residences.
In May 1999, the RO referred the case to a VA pysician to
address the following questions: Whether the veteran's lung
cancer as likely as not was related to smoking in service and
whether the veteran acquired nocotine dependecne during or
prior to service. The physcian reviewed the veteran's claims
file, including his service medical records, post-service
medical evidence and argument and testimony presented by the
appellant. The VA physician's opinion was that the veteran's
heavy use of tobacco was most likely the cause of his lung
cancer and that the veteran began smoking regularly before he
entered military service.
Pertinent Laws and Regulations
Service connection
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1999).
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and certain chronic
diseases, such lung cancer, become manifest to a degree of 10
percent within one year from the date of termination of such
service, such diseases shall be presumed to have been
incurred in service, even though there is no evidence of such
diseases during the period of service. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999).
Service connection is also warranted for disability
proximately due to or the result of a service-connected
disorder and where aggravation of a nonservice-connected
disorder is proximately due to or the result of a service-
connected disability. 449 (1995).
Service connection may also be granted for a disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In order for service connection for the cause of the
veteran's death to be granted, it must be shown that a
service-connected disability caused the death, or
substantially or materially contributed to it. A service-
connected disability is one which was incurred in or
aggravated by active service, one which may be presumed to
have been incurred during such service, or one which was
proximately due to or the result of a service-connected
disability. 38 U.S.C.A. § 1310 (West 1991);
38 C.F.R. §§ 3.310, 3.312 (1999).
The death of a veteran will be considered as having been due
to a service-connected disability when such disability was
either the principal or contributory cause of death. 38
C.F.R. § 3.312(a). The service-connected disability will be
considered the principal (primary) cause of death when such
disability, singly or jointly with some other condition, was
the immediate or underlying cause of death or was
etiologically related thereto. 38 C.F.R. § 3.312(b). The
service-connected disability will be considered a
contributory cause of death when it contributed substantially
or materially to death, that it combined to cause death, or
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312(c). The debilitating
effects of a service-connected disability must have made the
veteran materially less capable of resisting the fatal
disease or must have had a material influence in accelerating
death. See Lathan v. Brown, 7 Vet. App. 359 (1995).
Tobacco
VAOPGCPREC 19-97 provides that, if a claimant can establish
that a disease or injury resulting in disability or death was
a direct result of tobacco use during service, e.g., damage
done to a veteran's lungs by in-service smoking gave rise to
lung cancer, service connection may be established without
reference to 38 C.F.R. § 3.310(a) (1999) which provides for
"secondary service connection." However, where the
evidence indicates a likelihood that a veteran's disabling
illness had its origin in tobacco use subsequent to service,
and the veteran developed a nicotine dependence during
service which led to continued tobacco use after service, the
issue then becomes whether the illness may be considered
secondary to the service-incurred nicotine dependence
pursuant to 38 C.F.R. § 3.310. VAOPGCPREC 19-97 further
notes that secondary service connection could occur only if a
veteran's nicotine dependence which arose in service and
resulting tobacco use were the proximate cause of the
disability or death which is the basis of the claim, and that
proximate cause is adjudicatively one of fact.
VA's Under Secretary for Health has concluded that nicotine
dependence may be considered a disease for VA compensation
purposes. See USB Letter 20-97-14 (July 24, 1997).
Therefore, the two principal questions which must be answered
by adjudicators in resolving a claim for benefits for
tobacco-related disability or death secondary to nicotine
dependence are: (1) whether the veteran acquired a
dependence on nicotine during service; and (2) whether
nicotine dependence which arose during service may be
considered the proximate cause of disability or death
occurring after service.
VAOPGCPREC 19-97 further notes that in a case where, as a
result of nicotine dependence acquired in service, a veteran
continued to use tobacco products following service, the
decision would have to be made whether the post-service usage
of tobacco products was the proximate cause of the disability
or death upon which the claim is predicated. A supervening
cause of the disability or death, such as exposure to
environmental toxins, etc., might constitute a supervening
cause of the disability or death so as to preclude service
connection. It also addressed the situation when a nicotine-
dependent individual might have full remission and then
resume use of tobacco products.
In summary, the General Counsel held that a determination of
whether secondary service connection for disability or death
attributable to tobacco use subsequent to military service
should be established on the basis that such tobacco use
resulted from nicotine dependence arising in service,
depended upon whether nicotine dependence may be considered a
disease for purposes of VA benefits, whether the veteran
acquired nicotine dependence in service, and whether that
nicotine dependence may be considered the proximate cause of
disability or death resulting from the veteran's use of
tobacco products.
Finality and reopening claims
Regulations provide that an appeal consists of a timely filed
notice of disagreement in writing and, after a statement of
the case has been furnished, a timely filed substantive
appeal. 38 C.F.R. § 20.200 (1999). Absent appeal, a
decision of a duly constituted rating agency or other agency
of original jurisdiction shall be final and binding on all VA
field offices as to conclusions based on evidence on file at
the time VA issues written notification in accordance with
38 U.S.C.A. § 5104 (West 1991). 38 U.S.C.A. § 7105(c) (West
1991); 38 C.F.R. § 20.1103 (1999).
Also, a decision of the Board is appealable to the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court") within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988. 38 U.S.C.A. § 7104(b) (West
1991); 38 C.F.R. § 20.1100 (1999).
A final and binding decision shall not be subject to revision
on the same factual basis except as provided by regulation.
See 38 C.F.R. § 3.105 (1999).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991); Hickson v. West,
12 Vet. App. 247 (1999).
New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a). In Hodge v. West,
155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit
noted that new evidence could be sufficient to reopen a claim
if it could contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim.
Only evidence presented since the last final denial on any
basis (either upon the merits of the case, or upon a previous
adjudication that no new and material evidence had been
presented), will be evaluated in the context of the entire
record. Evans v. Brown, 9 Vet. App. 273 (1996).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v.
West, 12 Vet. App. 369 (1999) the Court held that the prior
holdings in Justus and Evans that the evidence is presumed to
be credible was not altered by the Federal Circuit decision
in Hodge.
In determining whether to reopen previously and finally
denied claims, a three-step analysis was recently announced
by the Court. Elkins v. West, 12 Vet. App. 209 (1999).
Under the Elkins test, the Board must first determine whether
the veteran has presented new and material evidence under
38 C.F.R. § 3.156(a) (1998) in order to have a finally denied
claim reopened under 38 U.S.C.A. § 5108. Second, if new and
material evidence has been presented, immediately upon
reopening the claim, the Board must determine whether, based
upon all the evidence of record in support of the claim, the
claim as reopened (as distinguished from the original claim)
is well grounded pursuant to 38 U.S.C.A. § 5107(a)
(West 1991). Third, if the claim is well grounded, the Board
may then proceed to evaluate the merits of the claim but only
after ensuring the VA's duty to assist under
38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled.
Winters v. West, , 12 Vet. App. 203 (1999).
Well groundedness
"[A] person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded."
38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507
(1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A
well-grounded claim is "a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of [section 5107(a)]." Murphy v. Derwinski,
1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992), the Court held that a claim must be
accompanied by supportive evidence and that such evidence
"must 'justify a belief by a fair and impartial individual'
that the claim is plausible."
For a claim to be well grounded, there generally must be (1)
a medical diagnosis of a current disability; (2) medical or,
in certain circumstances, lay evidence of in-service
occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury
or disease and the current disability. See Anderson, supra;
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd,
78 F.3d 604 (Fed. Cir. 1996) (table).
In any case, a claim for service-connection for a disability
must be accompanied by evidence which establishes that the
claimant currently has the claimed disability. Absent proof
of a present disability there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998);
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence. See Layno v. Brown, 6 Vet.
App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
For the purposes of determining whether this claim is well-
grounded, the Board must presume the truthfulness of the
evidence, "except when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion." King v.
Brown, 5 Vet. App. 19, 21 (1993).
If a claim is not well grounded, the application for service
connection must fail, and there is no further duty to assist
the veteran in the development of his claim.
38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78
(1990).
Analysis
The appellant did not appeal the Board decision dated in
December 1990, which denied entitlement to service connection
for the cause of the veteran's death, as claimed secondary to
radon exposure. Thus, it became final.
38 U.S.C.A. § 7104(b). Thereafter, a request for
reconsideration of that decision was denied. Subsequent to
the Board's December 1990 decision, the statements and
evidence submitted by the appellant raised the question of
tobacco use as the etiology of the veteran's fatal lung
cancer. That issue was initially addressed by the RO
thereafter and is now before the Board for the first time.
Tobacco
The threshold question to be answered with respect to the
appellant's tobacco claim, is whether she has presented
evidence of a well-grounded claim. The appellant has
testified that the veteran began smoking prior to service,
and that other than a brief period of time in 1961 or 1962,
he continued to smoke thereafter. Medical notations in the
file are consistent with such, noting a smoking history
spanning multiple decades and beginning prior to service.
There is no competent evidence showing that the veteran began
smoking in service, or that he developed a nicotine
dependence in service. In fact, the existing record is
negative for any diagnosis of nicotine dependence. Moreover,
there is no competent medical evidence showing that tobacco
use during service as opposed to the veteran's pre-service or
post-service tobacco used caused his fatal lung cancer. See
VAOPGCPREC 19-97. Thus, although the record contains
competent medical opinions relating cigarette smoking to the
veteran's development of lung cancer, there is no competent
medical evidence in turn linking the tobacco use that likely
caused lung cancer to service. See 38 C.F.R. § 3.303(d).
Thus, a claim of entitlement to service connection for the
lung cancer that caused the veteran's death on that basis is
not well grounded. See 38 C.F.R. § 3.312; Caluza, supra.
The record does not reflect that the appellant possesses a
recognized degree of medical knowledge that would render her
own opinions on medical diagnoses or causation competent.
Thus, such are not sufficient to establish a plausible claim.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board recognizes that the Court has held that there is
some duty to assist in the completion of an application for
benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1998)
even where the claim appears to be not well-grounded where a
claimant has identified the existence of evidence that could
plausibly well-ground the claim. See generally, Beausoleil
v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown,
8 Vet. App. 69 (1995), as modified in this context by Epps v.
Brown, 9 Vet. App. 341, 344 (1996). In the instant case,
however, the appellant has not identified any medical
evidence that has not been submitted or obtained, which will
support a well-grounded claim. Although the RO referred the
case to a physican or an opinion regarding the tobacco/lung
cancer matter abnd the phsyician did not address one of the
questions posed by the RO, in the absence of a well grounded
claim there was no basis for VA obtaining a opinion and there
is no need to obtain clarification of the opinion obtained.
Radon
In its final December 1990 decision, the Board denied service
connection based on the lack of evidence showing that any
service-connected disability caused or contributed to the
veteran's death, to include finding that the veteran's lung
cancer was not caused by radon exposure or other incident of
service. Subsequent to its December 1990 decision,
additional information pertinent to the veteran's exposure to
radon at various military housing sites has been associated
with the file. Also, the appellant has submitted numerous
articles pertinent to the increased incidence of lung cancer
in radon exposed smokers, and the radon levels at various Air
Force bases. Also submitted are medical statements pertinent
to the etiology of the veteran's fatal lung cancer. Such
evidence is new, and it contributes to a more complete
picture of the circumstances surrounding the origin of the
veteran's lung cancer. See Hodge v. West, 155 F.3d at 1363.
Accordingly, the appellant's claim is reopened. 38 C.F.R.
§ 3.156(a).
The Board must next determine if the appellant's claim is
well grounded. In that regard, the record contains a medical
statement, which is presumed credible for the purposes of
determining well groundedness, indicating that the veteran's
reported exposure to radon could have "had some role" in
the development of lung cancer. Also there are articles and
scientific citations regarding the increased incidence of
lung cancer in radon-exposed smokers. The Court has
indicated that medical treatises and articles can be used to
well-ground a claim where, as in this case, they are combined
with an opinion of an medical professional. Wallin v. West,
11 Vet. App. 509 (1998); cf. Sacks v. West, 11 Vet. App. 314
(1998).
The Board is satisfied that all relevant and available facts
have been properly developed in this case with respect to the
appellant's claim, as based on radon exposure. Service
records, and post-service medical evidence has been
associated with the file, and the appellant has testified at
a personal hearing. She has not identified any additional,
relevant evidence that has not been requested or obtained.
The Board finds all relevant evidence necessary for an
equitable disposition of the appeal has been obtained, and no
further assistance is required to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107.
Once a claim is found to be well grounded, the presumptions
of credibility and entitlement of the evidence to full weight
no longer apply. In the adjudication that follows a finding
of well groundedness, the Board must determine, as a question
of fact, both the weight and credibility of the evidence.
Equal weight is not accorded to each piece of material
contained in a record; every item of evidence does not have
the same probative value. The Board must account for the
evidence which it finds to be persuasive or unpersuasive,
analyze the credibility and probative value of all material
evidence submitted by and on behalf of a claimant, and
provide the reasons for its rejection of any such evidence.
See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown,
7 Vet. App. 36, 40 (1994); Abernathy v. Principi,
3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App.
621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169
(1991).
At the outset, it is noted that there is no allegation or
competent evidence relating the veteran's service-connected
medial collateral ligament strain of the left knee, residuals
of removal of a growth on the lower lip, or residuals of a
left foot fracture to his death. 38 C.F.R. § 3.312.
Additionally, neither the veteran's service records nor
competent medical evidence from the initial post-service year
shows lung cancer warranting service connection on a direct
or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309.
The Board has carefully considered the appellant's argument
relevant to radon exposure as a cause or contributory factor
in the veteran's death from lung cancer. She has submitted
evidence pertinent to radon levels at base housing where she
and the veteran resided. That evidence documents radon gas
in the veteran's immediate neighborhood, even if not in the
veteran's home. The Board also recognizes the various
articles and excerpts speaking to the potential impact of
radon exposure, to include causing lung cancer, or increasing
the chances of developing lung cancer in smokers. As to the
appellant's referral to DVB Circular 21-91-12, (July 1,
1991), the Board notes that such does not specify radon gas
exposure, create any presumption to entitlement based on such
or otherwise provide parameters for evaluating claims based
on radon exposure. Nor are there other VA regulations
pertinent to radon exposure for application in this case.
Moreover, consideration of the above in conjunction with the
competent medical evidence of record demonstrates that the
preponderance of the evidence is against a relationship
between radon gas and the veteran's fatal lung cancer in this
particular case, as discussed below.
Dr. Ellett, from the Board on Radiation Effects Research,
although admitting that "radon exposure can cause an
increase in lung cancer mortality particularly among persons
who smoke" also indicated that it was "not possible to date
when a particular cancer was initiated." Dr. Petty was
unable to "make a very strong case that [the veteran's]
tumor was related to Radon gas exposure" and found that the
veteran's lung cancer was a type "significantly increased in
people who have [a] strong smoking history." Despite
considering the impact of the veteran's reported radon gas
exposure, Dr. Petty concluded that the veteran's heavy
cigarette use was "the most likely source for his lung
cancer." While Dr. Petty acknowledged he could not deny
that exposure to radon gas "may have had some role," he
concluded that "all the information currently available
would suggest that the cigarette use was a much more likely
causative factor."
The Court has held that where a physician is unable to offer
a definite causal relationship, that opinion may not be
utilized in establishing service connection as such an
opinion is non-evidence. Perman v. Brown, 5 Vet. App. 237,
241 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).
The Court has also noted that the weight of a medical opinion
is diminished where that opinion is ambivalent or
speculative. See Reonal v. Brown, 5 Vet. App. 548 (1993);
Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4
Vet. App. 467 (1993). In this case, the above physicians
were not able, or not willing, to link radon gas exposure to
the veteran's development of lung cancer. Moreover, the May
1999 VA physician reviewed the veteran's entire claims file
and opined that the veteran's heavy use of tobacco was most
likely the cause of his lung cancer. Neither the appellant's
lay testimony, nor the general articles and excerpts she has
submitted are of sufficient probative value to outweigh the
medical conclusions drawn from the above physicians who had
access to the veteran's specific history. See Alemany v.
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v.
Derwinski, 1 Vet. App. 49, 54 (1990).
The preponderance of competent and probative evidence of
record shows that the veteran's fatal lung cancer was most
likely caused by cigarette smoking unrelated to service and
does not link such in whole or in part to radon gas exposure.
Thus, service connection for the cause of the veteran's death
is denied. 38 C.F.R. § 3.312.
ORDER
New and material evidence sufficient to warrant reopening the
claim of entitlement to service connection for the cause of
the veteran's death, as claimed due to radon exposure, having
been received, the claim is reopened.
Service connection for the cause of the veteran's death is
denied.
JANE E. SHARP
Member, Board of Veterans' Appeals